Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3396/19(EA 197/17)
MHCC010092832019
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 3396/2019
IN
EXECUTION APPLN. NO. 197/2017
IN
S.C. SUIT NO.7835/2001
1. Smt. Shakuntala Bapu Yesale (deceased).
2. Smt. Vimal A. Wagale
3. Smt. Jyoti Bapu Yesale
4. Smt. Kanchan Kishor Rane
nee Nutan Bapu Yesale
5. Kumari Vijaya Bapu Yesale ..Plaintiffs/DH
V/s.
Shri Sunil alias Rajaram Bapu Yesale ..Defendant/JD
Appearance:-
Adv. Mr. Kaushik for DH present.
JD in person.
CORAM : HHJ Shri V.V Vidwans.
C. R. No.03.
DATE : 9.3.2020.
ORAL ORDER
1. Perused the notice of motion supported by an affidavit of
plaintiff Smt. Jyoti Yesale. The notice of motion was served on the
defendant but no reply has been filed. Therefore, as per order dated
16.1.2020, the notice of motion has proceeded without say of JD.
-- 1 of 5 --
2 NM 3396/19(EA 197/17)
2. I have heard Ld. Counsel for the plaintiffs/ DH and JD in
person on the notice of motion on 28.2.2020.
3. It is the grievance of the Ld. counsel for the DH that, the
order passed by this court on 12.12.2018 is liable to be set aside as
same has been obtained by then Counsel of the plaintiffs without any
instruction from the plaintiffs. It is also prayed that, the statement made
by the earlier advocate of the plaintiffs was without any authority and
consent of the plaintiffs and it is not binding on the plaintiffs.
4. In the supporting affidavit, the plaintiff no.2 Jyoti has
supported the Motion and stated that, after Execution Application was
filed in the present proceedings, a Court Commissioner was appointed.
The Court Commissioner had submitted his report on 15.11.2017,
which was taken on record on 18.12.2017. It is submitted by the
plaintiff no.2 that, arrangement set out in the said report was not
acceptable to the plaintiffs. It was requested to the advocate to inform
the same to the court and then the advocate of the plaintiff had assured
about the same. Therefore, the plaintiffs were under impression that
they had properly instructed their previous advocate and that he would
properly place the facts on record before the court.
5. However, it is the grievance of the plaintiffs that, when
hearing took placed on 13.2.2019, the plaintiffs came to know from the
advocate that, they were required to make payment to the defendants in
terms of earlier order dated 12.12.2018. The plaintiffs were surprised
and stunned on getting this information because they had never agreed
for any such term and condition to be stated before the court by then
advocate. The plaintiff had lost confidence on then advocate and it
-- 2 of 5 --
3 NM 3396/19(EA 197/17)
appeared that there was some malafide or collusion, therefore they had
discharged their then advocate. When the plaintiff took inspection of
the case papers on record of the case, then they came to know from the
present advocate that their earlier advocate had made statement before
the court regarding Commissioner’s Report contrary to the instructions
given to him. Therefore, it is urged that the order dated 12.12.2018 is
liable to be set aside.
6. Ld. Counsel for the plaintiffs has relied upon the decision of
the Hon'ble Calcutta High Court reported in the case B.K. Gooyee V/s.
Commissioner of Income Tax (AIR 1966 Cal 438). In para 56 of the said
decision, Hon'ble Calcutta High Court has observed that, if lawyer
waives right of a client without instruction from the client it cannot be
held that the client had knowledge of the facts and such waiver is not
legal and binding on the client.
7. Considering the above facts and circumstances of the case
and in view of the ratio of the above said authority submitted and relied
upon by Ld Counsel for the plaintiffs, I am of the opinion that, the order
passed by this Court dated 12.12.2018, which incorporates contents of
the report of the Court Commissioner giving two alternatives. Second
alternative stated to be acceptable to the plaintiffs and that they were
also ready to pay contribution as per page 8 of the Court Commissioner
report to the defendant to make the share equal. Relying on the above
statement of the Ld Counsel for the plaintiffs, the court had accepted
the alternative no.2 and directed the parties to act accordingly, This
direction of the court and order passed on 12.12.2018 is held as not
legal and proper, as the statement made by then Counsel for the
plaintiffs was made without instructions and consent of the parties and
-- 3 of 5 --
4 NM 3396/19(EA 197/17)
therefore, not binding on them. Hence, I proceed to pass following
order : -
ORDER
Notice of Motion no. 3396/2019 is hereby allowed and
made absolute as under:-
1. Order dated 12.12.2018 is hereby called back and set
aside, the same having been obtained on the basis of
statement without instructions from the plaintiffs by
their earlier advocate.
2. It is further ordered that the application made by the
earlier advocate dated 11.01.2018 is without any
authority and consent of the plaintiffs and not binding
on the plaintiffs.
Notice of Motion is disposed of accordingly.
(V.V. Vidwans)
Date: 9.3.2020 Judge, City Civil Court,
Gr. Bombay (C.R. 03)
Dictated on : 9.3.2020
Transcribed on : 11.3.2020
Draft given on 11.3.2020
Signed by HHJ on : 12.3.2020
-- 4 of 5 --
5 NM 3396/19(EA 197/17)
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 12.3.2020
(NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 9.3.2020
Judgment/ order signed by P.O on 12.3.2020
Judgment/ order uploaded on 12.3.2020
-- 5 of 5 --